HB 183 - Criminal records; purge if person arrested but not charged

First Reader Summary

A BILL to amend Code Section 35-3-37 of the Official Code of Georgia Annotated, relating to inspection of criminal records and the purging, modifying, or supplementing of criminal records, so as to provide that any person arrested or indicted for a crime and subsequently released without charge or not prosecuted shall be entitled to have any criminal records relative to such case purged; and for other purposes.

Page Numbers - 1/ 2/ 3/ 4/ 5/ 6/ 7

Code Sections - 35-3-37

Recorded Votes

• Vote # 123 PASS 02/13/97
• Vote # 590 Agree sen sub 03/27/97
• Vote # 715 Adopt Con Com Rept 03/28/97

HB 183                                              HB 183/AP 
 
      H. B. No. 183 (AS PASSED HOUSE AND SENATE) 
      By:  Representatives Randall of the 127th, Crews of the 
      78th, Murphy of the 18th, Walker of the 141st and Coleman of 
      the 142nd 
                        A BILL TO BE ENTITLED 
                               AN ACT 
 
 
  1- 1  To amend Article 2 of Chapter 3 of Title 35 of the Official 
  1- 2  Code of Georgia Annotated, relating to the Georgia Crime 
  1- 3  Information Center, so as to provide that under certain 
  1- 4  conditions a person who has been arrested may request in 
  1- 5  writing that the arresting agency expunge the records of 
  1- 6  such arrest; to provide for review of such request by the 
  1- 7  prosecuting attorney; to provide criteria for expungement; 
  1- 8  to provide for the destruction of certain records if the 
  1- 9  records qualify for expungement; to provide for the 
  1-10  preservation of certain records to conform to constitutional 
  1-11  requirements; to provide that the Georgia Crime Information 
  1-12  Center shall restrict access to the criminal history of 
  1-13  certain persons; to provide that certain records shall be 
  1-14  available to certain criminal justice officials under 
  1-15  certain conditions; to provide for actions to enforce 
  1-16  certain rights under this Act; to provide for the award of 
  1-17  reasonable court costs and attorney's fees in certain cases; 
  1-18  to provide conditions under which records shall not be 
  1-19  expunged; to provide for appeals by the prosecuting attorney 
  1-20  in cases where the recommendation of the prosecuting 
  1-21  attorney is not followed; to provide procedures for 
  1-22  expungement of criminal records in certain cases where there 
  1-23  has been an indictment or accusation; to provide that 
  1-24  certain information relating to criminal cases shall not be 
  1-25  destroyed or disclosed; to provide for related matters; to 
  1-26  repeal conflicting laws; and for other purposes. 
 
  1-27       BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA: 
 
  1-28                           SECTION 1. 
 
  1-29  Article 2 of Chapter 3 of Title 35 of the Official Code of 
  1-30  Georgia Annotated, relating to the Georgia Crime Information 
  1-31  Center, is amended by striking Code Section 35-3-37, 
  1-32  relating to inspection of criminal records and the purging, 
  1-33  modifying, or supplementing of criminal records, and 
  1-34  inserting in lieu thereof a new Code Section 35-3-37 to read 
  1-35  as follows: 
 
 
 
 
                                 -1- 
 
 
 
  2- 1    "35-3-37. 
 
  2- 2    (a) Nothing in this article shall be construed so as to 
  2- 3    authorize any person, agency, corporation, or other legal 
  2- 4    entity to invade the privacy of any citizen as defined by 
  2- 5    the General Assembly or the courts other than to the 
  2- 6    extent provided in this article. 
 
  2- 7    (b) The center shall make a person's criminal records 
  2- 8    available for inspection by him such person or his or her 
  2- 9    attorney upon written application to the center. Should 
  2-10    the person or his or her attorney contest the accuracy of 
  2-11    any portion of the records, it shall be mandatory upon the 
  2-12    center to make available to the person or his such 
  2-13    person's attorney a copy of the contested record upon 
  2-14    written application identifying the portion of the record 
  2-15    contested and showing the reason for the contest of 
  2-16    accuracy. Forms, procedures, identification, and other 
  2-17    related aspects pertinent to access to records may be 
  2-18    prescribed by the center. 
 
  2-19    (c) If an individual believes his or her criminal records 
  2-20    to be inaccurate or incomplete, he or she may request the 
  2-21    original agency having custody or control of the detail 
  2-22    records to purge, modify, or supplement them and to notify 
  2-23    the center of such changes. Should the agency decline to 
  2-24    act or should the individual believe the agency's decision 
  2-25    to be unsatisfactory, the individual or his or her 
  2-26    attorney may, within 30 days of such decision, enter an 
  2-27    appeal to the superior court of the county of his or her 
  2-28    residence or to the court in the county where the agency 
  2-29    exists, with notice to the agency, to acquire an order by 
  2-30    the court that the subject information be expunged, 
  2-31    modified, or supplemented by the agency of record. The 
  2-32    court shall conduct a de novo hearing and may order such 
  2-33    relief as it finds to be required by law. Such appeals 
  2-34    shall be entered in the same manner as appeals are entered 
  2-35    from the probate court, except that the appellant shall 
  2-36    not be required to post bond or pay the costs in advance. 
  2-37    If the aggrieved person desires, the appeal may be heard 
  2-38    by the judge at the first term or in chambers. A notice 
  2-39    sent by registered or certified mail shall be sufficient 
  2-40    service on the agency having custody or control of 
  2-41    disputed record that such appeal has been entered. Should 
  2-42    the record in question be found to be inaccurate, 
  2-43    incomplete, or misleading as set forth in paragraph (3) of 
  2-44    subsection (d) of this Code section, the court shall order 
 
 
 
                                 -2- 
 
 
 
  3- 1    it to be appropriately expunged, modified, or supplemented 
  3- 2    by an explanatory notation. Each agency or individual in 
  3- 3    the state with custody, possession, or control of any such 
  3- 4    record shall promptly cause each and every copy thereof in 
  3- 5    his or her custody, possession, or control to be altered 
  3- 6    in accordance with the court's order. Notification of each 
  3- 7    such deletion, amendment, and supplementary notation shall 
  3- 8    be promptly disseminated to any individuals or agencies, 
  3- 9    including the center, to which the records in question 
  3-10    have been communicated, as well as to the individual whose 
  3-11    records have been ordered so altered. 
 
  3-12      (d)(1) An individual who was: 
 
  3-13        (A) Arrested for an offense under the laws of this 
  3-14        state but subsequent to such arrest is released by the 
  3-15        arresting agency without such offense being referred 
  3-16        to the prosecuting attorney for prosecution; or 
 
  3-17        (B) After such offense referred to the proper 
  3-18        prosecuting attorney, and the prosecuting attorney 
  3-19        dismisses the charges without seeking an indictment or 
  3-20        filing an accusation 
 
  3-21      may request the original agency in writing to expunge 
  3-22      the records of such arrest, including any fingerprints 
  3-23      or photographs of the individual taken in conjunction 
  3-24      with such arrest, from the agency files.  Such request 
  3-25      shall be in such form as the center shall prescribe. 
  3-26      Reasonable fees shall be charged by the original agency 
  3-27      and the center for the actual costs of the purging of 
  3-28      such records, provided that such fees shall not exceed 
  3-29      $50.00. 
 
  3-30      (2) Upon receipt of such written request, the agency 
  3-31      shall provide a copy of the request to the proper 
  3-32      prosecuting attorney.  Upon receipt of a copy of the 
  3-33      request to expunge a criminal record, the prosecuting 
  3-34      attorney shall promptly review the request to determine 
  3-35      if it meets the criteria for expungement set forth in 
  3-36      paragraph (3) of this subsection.  If the request meets 
  3-37      those criteria, the prosecuting attorney shall review 
  3-38      the records of the arrest to determine if any of the 
  3-39      material contained therein must be preserved in order to 
  3-40      protect the constitutional rights of an accused under 
  3-41      Brady v. Maryland. 
 
  3-42      (3) An individual has the right to have his or her 
  3-43      record of such arrest expunged, including any 
 
 
                                 -3- 
 
 
 
  4- 1      fingerprints or photographs of the individual taken in 
  4- 2      conjunction with such arrest, if the prosecuting 
  4- 3      attorney determines that the following criteria have 
  4- 4      been satisfied: 
 
  4- 5        (A) The charge was dismissed under the conditions set 
  4- 6        forth in paragraph (1) of this subsection; 
 
  4- 7        (B) No other criminal charges are pending against the 
  4- 8        individual; and 
 
  4- 9        (C) The individual has not been previously convicted 
  4-10        of the same or similar offense under the laws of this 
  4-11        state, the United States, or any other state within 
  4-12        the last five years, excluding any period of 
  4-13        incarceration. 
 
  4-14      (4) The agency shall expunge the record by destroying 
  4-15      the fingerprint cards, photographs, and documents 
  4-16      relating exclusively to such person.  Any material which 
  4-17      cannot be physically destroyed or which the prosecuting 
  4-18      attorney determines must be preserved under Brady v. 
  4-19      Maryland shall be restricted by the agency and shall not 
  4-20      be subject to disclosure to any person except by 
  4-21      direction of the prosecuting attorney or as ordered by a 
  4-22      court of record of this state. 
 
  4-23      (5) It shall be the duty of the agency to notify 
  4-24      promptly the center of any records which are expunged 
  4-25      pursuant to this subsection.  Upon receipt of notice 
  4-26      from an agency that a record has been expunged, the 
  4-27      center shall, within a reasonable time, restrict access 
  4-28      to the criminal history of such person relating to such 
  4-29      charge.  Records for which access is restricted pursuant 
  4-30      to this subsection shall be made available only to 
  4-31      criminal justice officials upon written application for 
  4-32      official judicial law enforcement or criminal 
  4-33      investigative purposes. 
 
  4-34      (6) If the agency declines to expunge such arrest 
  4-35      record, the individual may file an action in the 
  4-36      superior court where the agency is located as provided 
  4-37      in Code Section 50-13-19.  A decision of the agency 
  4-38      shall be upheld only if it is determined by clear and 
  4-39      convincing evidence that the individual did not meet the 
  4-40      criteria set forth in paragraph (3) of this subsection 
  4-41      or subparagraphs (A) through (G) of paragraph (7) of 
  4-42      this subsection.  The court in its discretion may award 
  4-43      reasonable court costs including attorney's fees to the 
 
 
                                 -4- 
 
 
 
  5- 1      individual if he or she prevails in the appellate 
  5- 2      process.  Any such action shall be served upon the 
  5- 3      agency, the center, the prosecuting attorney having 
  5- 4      jurisdiction over the offense sought to be expunged, and 
  5- 5      the Attorney General who may become parties to the 
  5- 6      action. 
 
  5- 7      (7) After the filing of an indictment or an accusation, 
  5- 8      a record shall not be expunged if the prosecuting 
  5- 9      attorney shows that the charges were nolle prossed, dead 
  5-10      docketed, or otherwise dismissed because: 
 
  5-11        (A) Of a plea agreement resulting in a conviction for 
  5-12        an offense arising out of the same underlying 
  5-13        transaction or occurrence as the conviction; 
 
  5-14        (B) The government was barred from introducing 
  5-15        material evidence against the individual on legal 
  5-16        grounds including but not limited to the grant of a 
  5-17        motion to suppress or motion in limine; 
 
  5-18        (C) A material witness refused to testify or was 
  5-19        unavailable to testify against the individual unless 
  5-20        such witness refused to testify based on his or her 
  5-21        statutory right to do so; 
 
  5-22        (D) The individual was incarcerated on other criminal 
  5-23        charges and the prosecuting attorney elected not to 
  5-24        prosecute for reasons of judicial economy; 
 
  5-25        (E) The individual successfully completed a pretrial 
  5-26        diversion program, the terms of which did not 
  5-27        specifically provide for expungement of the arrest 
  5-28        record; 
 
  5-29        (F) The conduct which resulted in the arrest of the 
  5-30        individual was part of a pattern of criminal activity 
  5-31        which was prosecuted in another court of this state, 
  5-32        the United States, another state, or foreign nation; 
  5-33        or 
 
  5-34        (G) The individual had diplomatic, consular, or 
  5-35        similar immunity or inviolability from arrest or 
  5-36        prosecution. 
 
  5-37      (8) If the prosecuting attorney having jurisdiction 
  5-38      determines that the records should not be expunged 
  5-39      because the criteria set forth in paragraph (3) or 
  5-40      subparagraphs (A) through (G) of paragraph (7) of this 
  5-41      subsection were not met, and the agency or center fails 
 
 
 
                                 -5- 
 
 
 
  6- 1      to follow the prosecuting attorney's recommendation, the 
  6- 2      prosecuting attorney having jurisdiction over the 
  6- 3      offense sought to be expunged or the Attorney General 
  6- 4      may appeal a decision by the agency or center to expunge 
  6- 5      a criminal history as provided in Code Section 50-13-19. 
 
  6- 6      (9) An individual who has been indicted or charged by 
  6- 7      accusation that was subsequently dismissed, dead 
  6- 8      docketed, or nolle prossed may request an expungement as 
  6- 9      provided by paragraphs (1) through (3) of this 
  6-10      subsection; provided, however, that if the prosecuting 
  6-11      attorney objects to the expungement request within 60 
  6-12      days after receiving a copy of said request from the 
  6-13      agency, the agency shall decline to expunge and the 
  6-14      individual shall have the right to appeal as provided by 
  6-15      paragraph (6) of this subsection. 
 
  6-16      (10) Nothing in this subsection shall be construed as 
  6-17      requiring the destruction of incident reports or other 
  6-18      records that a crime was committed or reported to law 
  6-19      enforcement.  Further, nothing in this subsection shall 
  6-20      be construed to apply to custodial records maintained by 
  6-21      county or municipal jail or detention centers.  It shall 
  6-22      be the duty of the agency to take such action as may be 
  6-23      reasonable to prevent disclosure of information to the 
  6-24      public which would identify such person whose records 
  6-25      were expunged. 
 
  6-26    (d)(e) Agencies, including the center, at which criminal 
  6-27    offender records are sought to be inspected may prescribe 
  6-28    reasonable hours and places of inspection and may impose 
  6-29    such additional procedures, fees not to exceed $3.00, or 
  6-30    restrictions including fingerprinting as are reasonably 
  6-31    necessary to assure the records' security, to verify the 
  6-32    identities of those who seek to inspect them, and to 
  6-33    maintain an orderly and efficient mechanism for inspection 
  6-34    of records. 
 
  6-35    (e)(f) The provisions of Chapter 13 of Title 50, the 
  6-36    'Georgia Administrative Procedure Act,' shall not apply to 
  6-37    proceedings under this Code section. 
 
  6-38    (f)(g) If the center has notified a firearms dealer that a 
  6-39    person is prohibited from purchasing or possessing a 
  6-40    handgun pursuant to Part 5 of Article 4 of Chapter 11 of 
  6-41    Title 16 and if the prohibition is the result of such 
  6-42    person's being involuntarily hospitalized within the 
  6-43    immediately preceding five years, upon such person or his 
 
 
 
                                 -6- 
 
 
 
  7- 1    or her attorney making an application to inspect his or 
  7- 2    her records, the center shall provide the record of 
  7- 3    involuntary hospitalization and also inform the person or 
  7- 4    attorney of his or her right to a hearing before the judge 
  7- 5    of the probate court or superior court relative to such 
  7- 6    person's eligibility to possess or transport a handgun." 
 
  7- 7                           SECTION 2. 
 
  7- 8  All laws and parts of laws in conflict with this Act are 
  7- 9  repealed. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                 -7-